PAW 2:2009cv01480 opinion

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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA

Civil Action No. 09-1480

AMY K. POHL,

Plaintiff,

vs .

UNITED STATES ENVIRONMENTAL
PROTECTION AGENCY, UNITED
STATES DEPARTMENT OF HEALTH
AND HUMAN SERVICES, CENTERS
FOR DISEASE CONTROL AND
PREVENTION, NATIONAL
INSTITUTES OF HEALTH, NATIONAL
INSTITUTE OF ENVIRONMENTAL
HEALTH SCIENCES, DR. BRUCE
LANPHEAR, and CHILDREN'S
HOSPITAL MEDICAL CENTER,

Defendants .

MEMORANDUM ORDER

Pending before the Court is a motion for a protective order
and to stay discovery, filed by Defendants United States
Environmental Protection Agency ("EPA"), United States Department
of Health and Human Services ("HHS" ) , the Centers for Disease
Control and Prevention ("CDC"), the National Institutes of Health,
and the National Institute of Environmental Health Sciences
(collectively, "the Government Defendants.") (Doc. No. 32.)
Plaintiff Amy Pohl objects to both aspects of the Motion and seeks
the opportunity to proceed with extensive requests for production
of documents. 1 Under the conditions set forth below, the Government

1 Plaintiff also argues that she is entitled to discovery on her

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Defendants' motion is granted.
I . BACKGROUND 2

Both the Government Defendants and Ms. Pohl argue that this is
not the typical case brought under the Freedom of Information Act,
5 U.S.C. § 552 ("FOIA"), or the Administrative Procedures Act, 5
U.S.C. §§ 702 and 706 ( "APA . " ) The Court agrees. The primary and
crucial difference is that unlike the typical APA or FOIA case
which focuses solely on the actions of one or more government
agencies, this case also involves non-governmental entities .

In the Amended Complaint ("Am. Compl . , " Doc. No. 28),
Plaintiff alleges that in 2008, the EPA promulgated new ambient air
quality standards for lead, based in large part on a study
conducted by Defendant Dr. Bruce Lanphear and others ("the Lanphear
Study. ") 3 Dr. Lanphear' s research concentrated on the correlation
between cognitive defects in younger children and exposure to lead
in the environment; it was funded, at least in part, by grants from
the National Institute of Environmental Health Sciences, the CDC,

"mandamus claims." (Plaintiff's Opposition to the Government Defendants'
Motion for a Protective Order, Doc. No. 38, at 11-13.) However, to the
extent that any portion of the Amended Complaint could be considered a
mandamus "claim," such claims were dismissed in the Memorandum Opinion
and Order entered on October 29, 2010.

2 Additional factual details are provided in the Memorandum Opinions
filed at Doc. Nos . 12, 25, and 48.

3 See Amended Complaint, Exhibit 1, "Low-Level Environmental Lead
Exposure and Children's Intellectual Function: An International Pooled
Analysis," published in Environmental Health Perspectives , Vol. 113, No.
7, July 2005. " ~ ~ ~

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the EPA, and the HHS. During much of the time in which Dr.
Lanphear conducted his research and compiled results from similar
studies by other scientists, he was affiliated with the Children's
Hospital Medical Center in Cincinnati, Ohio ("Children' s
Hospital.") Dr. Lanphear and Children's Hospital (collectively,
"the Research Defendants") also received federal grants beginning
in 2002 to fund creation of a center to study the effects of
prevalent neurotoxicants in children .

In August 2007 , Ms . Pohl wrote to the EPA requesting "a copy
of all data related to" the Lanphear Study, the . data collection
forms and software programs necessary to access and analyze those
data, and the data di ct i cnaries for the raw data. (Am. Compl . ,
Exh . 2.) Her FOIA request was initially denied for two reasons :
(1) the EPA did not have the underlying data and (2) at the time
the request was made, the EPA' s draft report citing the Lanphear
Study did not have the force and effect of law. Ms. Pohl appealed
this decision and in February 2008, the EPA conceded that while it
still did not have the requested data, since the agency was then in
the process of establishing the proposed standards for the lead
national ambient air quality standards (which would also rely on
the Lanphear Study) , the EPA would process her request in
accordance with 40 C.F.R § 30. 36. 4 The EPA stated it would contact

4 As discussed in more detail in the Memorandum Opinion at Doc. No. 48,
this regulation provides that "in response to a [FOIA] request for
research data relating to published research findings produced under an

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Dr. Lanphear, request an estimate of the fees for responding to Ms.
Pohl's request, and provide her with that estimate before
proceeding further. (Am. Compl . , Exh. 3.)

In June 2008, for reasons that are currently unclear, Ms.
Pohl's request was transferred from the EPA to the Centers for
Disease Control. The CDC wrote to Plaintiff on December 16, 2008,
stating that program staff had contacted the grantee, presumably
Dr. Lanphear, regarding the availability of the data. Dr. Lanphear
refused to provide them, "based on a private agreement among the
co-authors [of the Lanphear Study] reached at the outset of the
collaboration." (Am. Compl., Exh. 4.} The claim for exclusion was
allegedly because the data comprised "trade secrets, commercial
information, materials necessary to be held confidential by a
researcher until they are published, or similar information which
is protected by law." ( Id . , citing 45 C.F.R. § 74.36.)

The initial complaint in this matter did not allege any
violations of law by either Dr. Lanphear or Children's Hospital.
However, in the Amended Complaint, Ms. Pohl contends that the

award that were used by the Federal Government in developing an agency
action that has the force and effect of law, the EPA shall request, and
the recipient shall provide, within a reasonable time, the research data
so that they can be made available to the public through the procedures
established under the FOIA. If the EPA obtains the research data solely
in response to a FOIA request, the agency may charge the requester a
reasonable fee equaling the full incremental cost of obtaining the
research data. This fee should reflect costs incurred by the agency, the
recipient, and applicable subrecipients . This fee is in addition to any
fees the agency may assess under the FOIA (5 U.S.C. 552(a)(4)(A))." 40
C.F.R. §30. 36(d) (1) .

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Research Defendants entered into a series of contracts between
themselves and various Government Defendants which incorporated
provisions requiring them to provide research data according to the
regulations set out, for example, in 40 C.F.R. §30. 36(d) (1) . By
refusing to provide the data, the Research Defendants breached
those contracts. As member of the public, Plaintiff is a direct
and intended beneficiary of the research grants, she is entitled to
the information, and therefore has standing to compel the Research
Defendants to comply with the contract terms. (Am. Compl . , Count
VI, If 139-147.) In Count VII, Plaintiff alleges that the Research
Defendants have unlawfully withheld the requested data and thereby
violated Circular A-110 and the Shelby Amendment from which it is
derived . 5
II. DISCUSSION

In a typical case brought under FOIA, the plaintiff seeks an
order of court declaring that the defendant failed to conduct an
adequate search for the requested data, erroneously applied one of
the exceptions to production, erroneously invoked one of the nine
enumerated exemptions set out in the statute, or otherwise acted in
bad faith in responding to the request. See, e.g., Cozen 0' Connor
v. United States Pep' t of Treasury , 570 F. Supp. 2d 749 (E.D. Pa.
2008), discussing the criteria for an adequate search and several

5 See Memorandum Opinion at Doc. No. 48, footnote 3, for further
discussion of the "Shelby Amendment" to the Omnibus Consolidated &
Emergency Supplemental Appropriations Act of 1999, Pub. L. 105-277, 112

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of the nine exemptions to production of agency records. In such
cases, the court conducts a de novo review of the agency's decision
to withhold records from the public and determines as a matter of
law if the agency has complied with the statute. 5 U.S.C. §
552(a) (4) (B) . To carry its burden of justifying the denial, the
agency must submit affidavits to explain the process it used in
attempting to comply with the request and, if applicable, the
reasons a particular exemption or exception was applied. Arizechi
v. IRS , CA No. 06-5292, 2008 U.S. Dist. LEXIS 13753, *8 (D. N.J.
Feb. 25, 2008), citing Manna v. U.S. Dep't of Justice , 51 F.3d
1158, 1163 (3d Cir. 1995) .

The affidavits and other documentary evidence are provided
when the agency moves for summary judgment. "An agency is entitled
to summary judgment only when the agency's affidavits describe the
withheld information and the justification for withholding with
reasonable specificity, demonstrating a logical connection between
the information and the claimed exemption. . ., and are not
controverted by either contrary evidence in the record nor by
evidence of agency bad faith." Pipko v. CIA , 312 F. Supp.2d 669,
674 (D.N.J. 2003) (internal quotation omitted.) If the affidavits
are "relatively detailed, " nonconclusory , and provide sufficient
description of the documents withheld, the court may rely on them
in determining if the agency has acted in good faith when access

Stat. 2681-495, October 21, 1998.

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was denied. Ari zechi, id. at *9-*ll .

In general, FOIA cases do not anticipate discovery prior to
the ruling on the motion for summary judgment. Broaddrick v. Exec.
Office of the President , 139 F. Supp. 2d 55, 63 (D. D.C. 2001)
("discovery is not typically a part of FOIA. . .cases") (internal
citation omitted); Heily v. DOC , No. 03-1309, 2003 U.S. App. LEXIS
13503, *5-*6 (4 th Cir. June 12, 2003) ("discovery may be greatly
restricted in FOIA cases" and "is generally is limited to the scope
of the agency's search and its indexing and classification
procedures.") Even after the agency has moved for summary judgment,
discovery in FOIA cases is rare. Schrecker v. United States DOJ ,
217 F. Supp. 2d 29, 35 (D. D.C. 2002) (Discovery in FOIA cases
"should be denied where an agency's declarations are reasonably
detailed, submitted in good faith and the court is satisfied that
no factual dispute remains.")

However, this is by no means a firm prohibition. See, e.g.,
Pa. Dep't of Pub. Welfare v. United States , CA No. 99-175, 2001
U.S. Dist. LEXIS 3492, * 2 (W.D. Pa. Feb. 7, 2001), referring to
more than eight months of discovery prior to the parties filing for
summary judgment; Miccosukee Tribe of Indians of Fla. v. United
States , 516 F. 3d 1235, 1240-1242 (11 th Cir. 2008) (magistrate judge
permitted plaintiffs to take depositions of EPA employees prior to
agency's motion for summary judgment and additional discovery prior
to resolution of the motion.) The decision to allow discovery and

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the scope thereof is at the discretion of the district court.
Baker & Hostetler LLP v. United States DOC , 473 F. 3d 312, 318 (D.C.
Cir. 2006), citing SafeCard Servs. , Inc. v, SEC , 926 F. 2d 1197,
1200 (D.C. Cir. 1991) (district court has "broad discretion to
manage the scope of discovery" in FOIA cases) ; Broaddrick, id.

Discovery in cases brought under the APA is similarly rare and
often restricted in scope or duration; however, as in FOIA cases,
it is not absolutely prohibited. See Little Co. of Mary Hosp. v.
Sebelius, 587 F. 3d 849, 856 (7 th Cir. 2009) ("As a general rule,
under the APA, review of an agency's decision is confined to the
administrative record to determine whether, based on the
information presented to the administrative agency, the agency's
decision is arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with the law") ; Sharkey v. Quarantillo,
541 F. 3d 75, 93, n . 15 (2d Cir. 2008) (Discovery rights are
"significantly limited" in APA cases and the "agency must turn over
the whole administrative record as it existed at the time of the
challenged agency action, but normally no more.") The United
States Court of Appeals for the Third Circuit has considered in
detail those circumstances in which the administrative record may
be supplemented . See NVE, Inc. v. HHS , 4 36 F. 3d 182 ( 3d Cir .
2006) . There, the Court noted that only one provision of the APA,

5 U.S.C. § 706(2) (F) , 6 permits a reviewing court to look beyond the

6 The APA provides in relevant part; "To the extent necessary to

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administrative record and then only in two situations: (1) "when
the action is adjudicatory in nature and the agency fact finding
procedures are inadequate," and (2) "when issues that were not
before the agency are raised in a proceeding to enforce
nonadjudicatory agency action." Id. at 189, quoting Citizens to
Preserve Overton Park, Inc. v. Volpe , 401 U.S. 402, 415 (1971).
Thus, in this Circuit, the administrative record in APA cases may
be supplemented where there was evidence of agency bias ( NVE, Inc. ,
id. at 195) or "where the bare administrative record [does] not
disclose the factors considered by an agency or the agency' s
construction of the evidence in its record." Horizons
International, Inc. v. Baldrige , 811 F.2d 154, 162 (3d Cir. 1987),
citing Overton Park , id . at 420; see also Camp v. Pitts , 411 U.S.
138, 141-142 (1973) ("de novo review is appropriate only where
there are inadequate factfinding procedures in an adjudicatory
proceeding, or where judicial proceedings are brought to enforce
certain administrative actions.")

The fact that this case involves defendants other than
government agencies may well require Plaintiff to engage in some
discovery prior to consideration of the Government Defendants'

decision and when presented, the reviewing court shall decide all
relevant questions of law, interpret constitutional and statutory
provisions, and determine the meaning or applicability of the terras of an
agency action. The reviewing court shall. . .hold unlawful and set aside
agency action, findings, and conclusions found to be. . .unwarranted by
the facts to the extent that the facts are subject to trial de novo by
the reviewing court." 5 U.S.C. § 706(2) (F) .

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expected motion for summary judgment, in particular on the subject
of the interactions between the Government Defendants and the
Research Defendants. For example, the administrative record will
not, most likely, reflect actions between the Research Defendants
themselves or between Dr. Lanphear and his collaborators. It may
therefore be necessary to supplement the administrative record with
evidence from the Research Defendants - by way of example only, a
deposition by Dr. Lanphear to explain the agreement among the
collaborators on the Lanphear Study that the research data would
not be released or to explain the basis for the exemption on which
the CDC relied in refusing to produce the data.

We will therefore grant the Government Defendants' motion for
a protective order and stay discovery pending a conference among
counsel for all parties herein, at which time we will consider
whether the parties should proceed with limited and well-focused
discovery, particularly with regard to the claims against the
Research Defendants, prior to the Government Defendants filing
their motion for summary judgment .

November £j

2010

William L. Standish
United States District Judge

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